Opinion: Asbestos Regulations Starting to Bite.

Andrew McFarlane, Partner in DM Hall Chartered Surveyors, warns that asbestos rules are now starting to be policed very rigorously and ignorance is no excuse.

The reports of an architect being accused of the manslaughter of seven people who died in an outbreak of Legionnaires' disease after a jury found her guilty of breaching the Health and Safety Act, will no doubt send shivers racing up the spines of professionals working in the building trade.

Whilst the architect in question is currently facing a retrial, many will regard her prosecution, following in the wake of discussions about corporate manslaughter legislation and the Hatfield train crash trial approaching a conclusion, as an indication that the Health and Safety Executive is now adopting a hard-line stance on such matters.

The HSE seems intent on holding professionals to account for action, including architects and surveyors who, until now, might have considered themselves to be protected, as insofar as being personally responsible is concerned, from the possibility of such prosecution.

And now, one year on from The Asbestos at Work Regulations 2002 coming into effect, the HSE looks as if it is beginning to flex its muscles in relation to the regulations. Until now, the HSE has, quite deliberately, adopted a passive stance in relation to the legislation, but it now looks set to adopt a more vigorous stance towards pursuing the legislation which will see it looking at asbestos-related matters far more closely than has been the case up till now.

Certainly from personal experience, I know of at least one major client who has been approached very recently by a local authority enquiring about his asbestos management plans for his business premises. Business owners should be aware that many local authorities are now starting to take a keen interest in asbestos as part of the whole regime of environmental health and business premises management matters.

The Asbestos regulations were introduced as a result of government action to reduce deaths in the workplace caused by asbestos related illnesses. Asbestosis is still the biggest workplace killer, according to the Health and Safety Executive. In the 30 years between 1968 and 1998, 50,000 people died in the UK from asbestos related diseases and, according to government estimates, asbestosis may kill as many as 10,000 people a year in the UK by 2020.

Asbestos was used extensively as a building material in Britain from the 1950s through to the mid 1980s. Although some of it has been removed over the years, there are thousands of tonnes of asbestos still present in buildings. It is estimated that over half a million non-domestic premises presently contain some form of asbestos.

Concerned that information on whether buildings contain asbestos was not always communicated to those at risk, last year the HSE introduced new statutory obligations principally for those responsible for non-domestic premises and, in addition, common areas of domestic premises. The obligation is then to determine if their buildings contain asbestos and, if so, to manage the health risks arising.

What this means in practice is that the duty holder, normally the owner or tenant, will be responsible for instigating and executing an appropriate plan to manage any asbestos-containing materials. Unless there is good reason to conclude that the building does not contain asbestos, then the duty holder is obliged to assume that it might do and so provide a plan for its management.

Failure to comply with the regulations is a criminal offence. As part of the due diligence process, solicitors acting on behalf of purchasers of buildings or prospective tenants should now enquire whether an asbestos survey has been conducted and request information on the asbestos register and management plan.

Where a tenant suspects the presence of asbestos, then he would be advised to seek professional advice. Not all asbestos, of any type in any condition, is always a health risk and it will sometimes be safer and wiser to leave it intact and manage it than attempt to remove it, which may not be necessary and could expose others to risk.

But one year on from the asbestos regulations coming into effect, the clear message to business owners from the HSE is that these regulations will now be policed more actively than before so that any businesses yet to take any steps towards complying with the regulations should do so now as a matter of priority.

Ignorance is no excuse and any business presently flouting the asbestos regulations will be found out, sooner or later. The same message applies to building professionals.

Andrew McFarlane is a Partner in DM Hall, Chartered Surveyors, and a specialist in building surveying.